United States v. 2010-11-30 | 10-55713 | Pauma Band of Luiseno Mission V. State of California |…

This disposition is not appropriate for publication and is not precedent*
except as provided by 9th Cir. R. 36-3.
NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
PAUMA BAND OF LUISENO MISSION
INDIANS OF THE PAUMA & YUIMA
RESERVATION, a federally recognized
Indian Tribe, AKA Pauma Luiseno Band
of Mission Indians, AKA Pauma Band of
Mission Indians,
Plaintiff - Appellee.,
v.
STATE OF CALIFORNIA;
CALIFORNIA GAMBLING CONTROL
COMMISSION, an agency of the State of
California; ARNOLD
SCHWARZENEGGER, as Governor of
the State of California,
Defendants - Appellants.
No. 10-55713
D.C. No. 3:09-cv-01955-LAB-
AJB
ORDER*
Appeal from the United States District Court
for the Southern District of California
Larry A. Burns, District Judge, Presiding
Argued and Submitted November 2, 2010
Pasadena, California
FILED
NOV 30 2010
MOLLY C. DWYER, CLERK
U .S. C OU R T OF APPE ALS

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The Honorable John A. Jarvey, United States District Judge for the**
Southern District of Iowa, sitting by designation.
2
Before: SCHROEDER and TALLMAN, Circuit Judges, and JARVEY, District
Judge.**
This case is remanded to the district court for reconsideration of all four of
the Winter factors (see Winter v. Natural Res. Def. Council, – U.S. –, 129 S.Ct.
365, 374 (2008)), and to re-analyze them in light of our recent decisions in
Alliance for Wild Rockies v. Cottrell, 09-35756, 2010 WL 3665149 (9th Cir. July
28, 2010) (amended Sept. 22, 2010) (articulating a post-Winter “sliding-scale”
test), and Cachil Dehe Band of Wintun Indians of the Colusa Indian Cmty. v.
California, No. 09-16942, 2010 WL 3274490 (9th Cir. Aug. 20, 2010) (altering the
Eastern District Court of California’s interpretation of the IGRA Compact formula
for determining the total number of Class III gaming licenses at issue). If upon
reconsideration the district court determines injunctive relief is warranted, it must
justify any alteration of the status quo. See Tanner Motor Livery, Ltd. v. Avis, Inc.,
316 F.2d 804 (9th Cir. 1963).
Should there be another challenge to the district court’s decision on remand
regarding the propriety of continuing injunctive relief, the district court is directed
to expeditiously proceed to address the merits of the underlying Compact litigation
during the pendency of any further interlocutory appeal. See Britton v. Co-op

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Banking Grp., 916 F.2d 1405, 1412 (9th Cir. 1990) (“[A]n appeal of an
interlocutory order does not ordinarily deprive the district court of jurisdiction
except with regard to the matters that are the subject of the appeal.”) (citing
Manual for Complex Litigation §§ 25.11, 25.16 (2d Ed.)).
Because this case is remanded to the district court, Appellee’s July 15, 2010,
motion to take judicial notice is denied as moot. The injunction is to stay in effect
pending the district court’s reconsideration. Each party shall bear its own costs.
The panel will retain jurisdiction over any subsequent appeals.
REMANDED.

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